8.2 Environmental Jurisdiction to Enforce
In legal theory, most of the time, the enacted must be enforced.
40 Prescriptive and
enforcement jurisdiction are two sides of the same coin, key to the idea of a rightduty to manage marine resources. Of those, prescription is relatively easier to grasp,
as legal complications arising from enacting abusive laws and regulations turn out
fairly easy to avoid. However, the prescription of rules alone rarely suffices in
shaping human behavior, which is the ultimate goal of legal rules. For nor less,
enforcement is a crucial element in any legal order, one of the main pillars of the
notion of “law” itself. In a poetic sense, it is the “soul” that sustains the “body” of
Themis. When applied to international law, enforcement jurisdiction is governed by
a fundamental principle, that of territoriality, according to which the enforcement
jurisdiction may not be exercised in the territory of any other state without the
consent of that state. Still, the exercise of enforcement is not always consensual—
and it is no different with the law of the sea.
With respect to coastal states’ environmental enforcement powers, it is useful to
split once again the analysis of the material extent of such jurisdiction into the two
relevant dimensions of environmental protection: management and conservation of
marine living resources; and prevention, reduction and control of marine pollution.
As to the biodiversity conservation, bottom trawling and marine scientific
research, or more specifically, bioprospecting for marine genetic resources are key
activities taking place on or in connection with the continental shelf which relate to
the management and conservation of marine living resources. In general, coastal
states have the right to take enforcement measures aimed at implementing their
prescriptive jurisdiction against activities which may harm living resources of their
continental shelves, especially within, but also beyond 200 nm, pursuant to
UNCLOS Arts. 73 and 77.
On to the second dimension of environmental powers, regarding the combat of
marine pollution, drafters of UNCLOS have dedicated an entire Section to the topic
of enforcement.
41 Of all provisions of Section 6, Part XII UNCLOS, particular
interest is given here to the ones directly related to the seabed and subsoil subject
40 Following Hart’s concept of Law, there can be, however, primary norms which do not need a
secondary norm to ensure its implementation. It is especially the case in the domestic order, in
which a (administrative) rule establishes, for instance, the capital city of a certain state. See
generally Hart (2012).
41 Section 6 UNCLOS deals with enforcement regarding a plethora of different situations and
activities, such as enforcement with respect to pollution from land-based sources (Art. 213);
enforcement with respect to pollution from seabed activities (Art. 214); enforcement with respect
to pollution from activities in the Area (Art. 215); enforcement with respect to pollution by dumping
(Art. 216); enforcement by flag States (Art. 217); enforcement by port States (Art. 218); enforcement of measures relating to seaworthiness of vessels to avoid pollution (Art. 219); enforcement by
coastal States (Art. 220); enforcement of measures to avoid pollution arising from maritime
casualties (Art. 221); and finally, enforcement with respect to pollution from or through the
atmosphere (Art. 222).
8.2 Environmental Jurisdiction to Enforce
235
In legal theory, most of the time, the enacted must be enforced.
40 Prescriptive and
enforcement jurisdiction are two sides of the same coin, key to the idea of a rightduty to manage marine resources. Of those, prescription is relatively easier to grasp,
as legal complications arising from enacting abusive laws and regulations turn out
fairly easy to avoid. However, the prescription of rules alone rarely suffices in
shaping human behavior, which is the ultimate goal of legal rules. For nor less,
enforcement is a crucial element in any legal order, one of the main pillars of the
notion of “law” itself. In a poetic sense, it is the “soul” that sustains the “body” of
Themis. When applied to international law, enforcement jurisdiction is governed by
a fundamental principle, that of territoriality, according to which the enforcement
jurisdiction may not be exercised in the territory of any other state without the
consent of that state. Still, the exercise of enforcement is not always consensual—
and it is no different with the law of the sea.
With respect to coastal states’ environmental enforcement powers, it is useful to
split once again the analysis of the material extent of such jurisdiction into the two
relevant dimensions of environmental protection: management and conservation of
marine living resources; and prevention, reduction and control of marine pollution.
As to the biodiversity conservation, bottom trawling and marine scientific
research, or more specifically, bioprospecting for marine genetic resources are key
activities taking place on or in connection with the continental shelf which relate to
the management and conservation of marine living resources. In general, coastal
states have the right to take enforcement measures aimed at implementing their
prescriptive jurisdiction against activities which may harm living resources of their
continental shelves, especially within, but also beyond 200 nm, pursuant to
UNCLOS Arts. 73 and 77.
On to the second dimension of environmental powers, regarding the combat of
marine pollution, drafters of UNCLOS have dedicated an entire Section to the topic
of enforcement.
41 Of all provisions of Section 6, Part XII UNCLOS, particular
interest is given here to the ones directly related to the seabed and subsoil subject
40 Following Hart’s concept of Law, there can be, however, primary norms which do not need a
secondary norm to ensure its implementation. It is especially the case in the domestic order, in
which a (administrative) rule establishes, for instance, the capital city of a certain state. See
generally Hart (2012).
41 Section 6 UNCLOS deals with enforcement regarding a plethora of different situations and
activities, such as enforcement with respect to pollution from land-based sources (Art. 213);
enforcement with respect to pollution from seabed activities (Art. 214); enforcement with respect
to pollution from activities in the Area (Art. 215); enforcement with respect to pollution by dumping
(Art. 216); enforcement by flag States (Art. 217); enforcement by port States (Art. 218); enforcement of measures relating to seaworthiness of vessels to avoid pollution (Art. 219); enforcement by
coastal States (Art. 220); enforcement of measures to avoid pollution arising from maritime
casualties (Art. 221); and finally, enforcement with respect to pollution from or through the
atmosphere (Art. 222).
8.2 Environmental Jurisdiction to Enforce
235